(Crime No.374/92) .. Respondents
This criminal appeal and revision case are preferred
under Sections 374 and 397 and 401 Cr.P.C. respectively against the judgment
passed by the learned Sessions Judge, Thanjavur made
in S.C.No.195 of 199 4
dated 12.10.1995.

For Petitioners : Mr.B.Sri Ramulu, SC

for Mr.A.Padmanabhan for A1,3 & 6
in CA.808 of 1995 and

for respondents 1 to 7 in

Crl.RC.28 of 1996

Mr.S.Ravi

for Mr.S.N.Thangaraj

for petitioner in Crl.R.C.28/96

For Respondents : Mr.O.Srinath

Govt. Advocate(Crl. Side)

for respondent in CA.808 of 1995
and for R8 in Crl.RC.28 of 1996

:COMMON JUDGMENT

This judgment shall govern both Criminal appeal in CA.No.808 of 1995
and criminal revision case in Cr.R.C.No.28 of 1996.

2. The criminal appeal and revision case have arisen from the
judgment of the learned Sessions Judge, Thanjavur
made in S.C.No.195 of 199 4
wherein the appellants in CA.No.808 of 1995 were ranked as A1, A3 and A6 along
with four others. The
accused were charged, found guilty and sentenced to
undergo imprisonment as shown below:

3. The short facts necessary for the disposal of this appeal and
criminal revision can be stated as follows:

a) The accused, who were arrayed as A1 to A7, one Ramesh, who was
absconding accused and his case was split up, and
P.Ws.1 to 6 were all hailing
from same political party. On 30.11.1991, an election was conducted for the
local District Secretary
and there was a competition between the group of
deceased and the first accused. There was a clash between the group of
the
deceased and the first accused. A1 sustained injury and due to that, the said
election was stopped. A1 was aggrieved over the
said incident.
b) On 27.4.1992 at about 8.30 p.m., PW1 and his brother Panneerselvam,
Karikalan, Murthy, Veerayan, Pakianathan
and Pazhakadai Durai were all went to
Thambu cheppal Shop situated in the Old Bus stand. At that time, an
Ambassador Car
bearing registration No.TNZ 1616 was came there. In that Car
A1 to A7 were travelling and they parked the said car in the entrance
of the
bus stop and came out of the car. Further two cars bearing Registration
Nos.TSF 7785 and TMF 8671 came there and
from the said two cars, 10 to 15
persons have got down. A2 was holding a gun, while the other accused were
armed with deadly
weapons. At that time A1 told his brother A2 that
"Pannerselvam is here shoot him". Immediately, A2 shot at him with
his gun on
his right leg and the first accused cut the right leg of the said Pannerselvam
using Aruval, A3 cut him on his left
leg. At that time, Pannerselvam raised
alarm and fell down. In order to restrain the attack, Murthy was attacked by
A4 and A5
on his left leg and left thigh using Aruval. A6 attacked Murthy
with Aruval on his left leg and right shoulder. Ramesh attacked
Murthy on his
right side head by using bottom portion of Aruval. Ramesh also attacked
Veerayan on his left cheek and A7 attacked
Veerayan on his right shoulder and
head using Aruval. They raised alarm. Chairs were thrown out. Then A2
raised a slogan
"Panner is closed, let us go". After that, all the accused
fled away from the scene of occurrence through the said Cars. Pannerselvam,
Murthy and Veerayan were taken to Government Hospital, Pattuk kottai by P.W.1
in a Cycle Rickshaw. In the hospital, the doctor
declared Pannerselvam dead.
Then P.W.1 rushed to the Police Station at 9.30 p.m. and lodged a complaint,
which was marked under
Ex.P.1. On the strength of which, a case came to be
registered.

c) P.W.15, Devendran, Constable, who was on duty at that time,
registered a case in Crime No.374/92 under Sections
147, 148, 341, 324, 30 7
and 302 IPC and 25(1) of Indian Arms Act. The printed F.I.R Ex.P.1 4 was
despatched to the Judicial
Magistrate, No.1, Pattukkottai and the copies were
sent to officials. P.W.17 Vaithyalingam Inspector on receipt of the copy of
F.I.R. took up investigation, proceeded to the site of occurrence on
28.4.1992 at 6.00 a.m. He prepared observation mahazar
in the presence of the
witnesses under Ex.P.2 and rough sketch Ex.P.15. On the same day, he
recovered MO4 blood stained
earth, MO5 sample earth, MO7 broken glass pieces
of car, MO8 Yamaha Motor Cycle and MO1 Steel chair under Ex.P.3 mahazar in the
presence of the witnesses. He visited Pattukkottai Nadimuthu Nagar
Corporation Park and seized the damaged Ambassador
Cars MO2 TNZ 1616, MO3 TMF
8671 and MO9 TSF 7785 under Ex.P.4 mahazar in the presence of the witnesses.
d) On the same
day at about 10.30 a.m. to 12.30 p.m., he conducted
inquest on the body of the deceased in the presence of the panchayatars
and
prepared Ex.P.16 inquest Report. He examined PW1 and other witnesses and
recorded their statements. The dead body was
sent through a Constable along
with a requisition for post-mortem to the Thanjavur Medical College Hospital.
On receipt of information,
P.W.12 Doctor Uma Maheswari conducted post-mortem
on the dead body of Pannerselvam and has given post-mortem report, which was
marked as Ex.P.9. The Doctor opined that the deceased would appear to have
died of shock and haemorrhage due to cut injuries
of the lower limbs. P.W.10
Dr. Ambujam examined P.W.2 on 27.4.1992 at 11.50 p.m. P.W.11 Dr.
Anantharamakrishnan examined
Moorthy, who was not examined as witness, and
found the following injuries:

e) P.W.17 Vaithialingam Inspector examined P.W.5 and other witnesses
on 29.4.1992 at about 11.05 a.m. He examined
one Ramesh, who underwent
treatment in the Thanjavur Medical College hospital. On the very day, at
about 11.55 a.m. he
arrested A6 and A6 was sent to judicial remand. MOs
recovered were sent for chemical examination by the concerned court.
The
remaining witnesses were also examined. P.W.18 Subramaniam Inspector took up
further investigation, examined PWs.10,11
and 16 and completed the
investigation. He laid a charge sheet.

4. In order to prove the charges levelled against the appellants and
the other accused, the prosecution examined
18 witnesses and marked 16
exhibits and 12 M.Os. On completion of the evidence on the side of the
prosecution, all the
accused were questioned under Section 313 of Cr.P.C. as
to the incriminating circumstances found in the evidence of the prosecution
witnesses, which they flatly denied as false. But they would further add that
they sustained injuries at the time of occurrence
and PWs were aggressors. No
defence witnesses were examined. On consideration of the rival submissions
made and scrutiny of
the materials available, the trial court found the
accused Nos.1 and 3 guilty under Section 326 and A6 was found guilty
under
Section 324 IPC, while acquitted all other accused and the appellants herein
also in respect of other charges levelled against
them.

5. Advancing his arguments on behalf of the appellants, the learned
counsel made the following submissions for consideration
by this Court.
According to the prosecution case, 8 named persons, who were arrayed
as A1 to A7 and one Ramesh, who
was subsequently acquitted in the split up
case along with 10 to 15 other persons armed with deadly weapons came to the
place
of occurrence in three Ambassador cars and attacked the deceased and
others. The trial court found A1, A3 and A6/ appellants
herein guilty, while
acquitted all other accused. Having accepted the defence case in respect of
all other accused, namely A2,
A4, A5 and A7 and disbelieved that part of the
prosecution case against them, the trial court should have acquitted all the
accused.
There are so many circumstances indicated to show that P.W.1, who
was an informant, could not have been available at the place
of occurrence.
Even the eyewitnesses examined by the prosecution do not speak about the
presence of P.W.1 at the time of occurrence,
and hence, it would be clear that
P.W.1 was not present at the time of occurrence. Hence, the case registered
on the basis of
the complaint given by P.W.1 looses its vigour. The defence
was able to show that A6, A7 and Ramesh against whom the case was
separately
conducted were also sustained injuries. A6 was examined by P.W.9 Doctor, who
has issued Ex.P.5 wound certificate.
It is pertinent to note that A6 was
examined at 10.00 p.m. within 1-1/2 hours from the time of occurrence, where
he has categorically
stated as to how he was attacked by number of persons.
There is also evidence to show that Ramesh against whom the case
was
separately conducted was also injured. A scrutiny of the wound certificate
would clearly show that he sustained cut injuries
and also bleeding injuries.
The prosecution has not made any attempt as to how the accused sustained
injuries at the time
of occurrence. It was also brought to the notice of the
lower court that a complaint was lodged by A6 immediately and a case
was
registered in Crime No.376 of 1992 by the same police. It is a matter of
surprise to note that the Investigating Officer,
who has admitted that when he
went to the hospital he found A6, A7 and the other accused with injuries, has
neither investigated
the said persons nor tried to know whether there was any
case registered at the instance of A6, but the fact remains that a case
was
actually registered at the instance of A6. The same was not taken into
consideration by the trial court. In the
instant case, there were so many
infirmities and lacuna incurable at the time of investigation, and thus, the
suppression on the
part of the investigation as to the case registered at the
instance of A6 and further what happened to the said case, would all go
a long
way that the trial court could not appraise or make proper appreciation of the
evidence adduced by the prosecution and to
arrive at a correct conclusion, and
hence, in view of all the above, the trial court should have acquitted the
appellants.

6. Arguing for the revision petitioner, the learned counsel would
submit that the trial court without proper appreciation
of the evidence has
acquitted some of the accused in respect of all the charges and the appellant
before this Court in respect
of Sections 302 r/w 34 and 149 IPC. The
eyewitnesses, namely, PWs.1 to 3 have categorically spoken about the overt act
committed by A1 and A3 in a clear terms. Their evidence was also corroborated
by the medical evidence. Under the stated circumstances,
the trial court
should have found both the accused guilty under Section 302 IPC. The trial
court has not found the accused
guilty under Section 149 IPC and other
provisions relating to unlawful assembly, since no weapon has seized. The non
seizure
of weapons in a case of murder would not in any way fatal to the
prosecution case and on that ground, the prosecution
case cannot be
disbelieved. The contention put forth by the appellants' side that the
injuries on the accused/appellant
were not explained by the prosecution cannot
be countenanced. The same contention was also raised before the trial court,
but the
trial court was not inclined to accept the same, since the injuries
found on A6, A7 and one Ramesh, who was an absconding accused,
were simple and
superficial, which the prosecution was not called upon to explain. Insofar as
the contention regarding Cr.No.3
76/92 was concerned, the non production of
F.I.R. and the connected records has not in no way affected the case of
prosecution,
since there is nothing to show that the Crime No.376/92 came to
be registered in relation to the same transaction in question,
and thus,
without proper appreciation, the trial court has acquitted the accused for the
charges under Section 302 and other provisions,
and hence, the conviction and
sentence insofar as that part is concerned has got to be modified.

7. Answering to the above contentions, the learned Government
Advocate would submit that the trial court on
proper appreciation of the
evidence has found A1 and A3 guilty under Section 326 IPC and A6 was found
guilty under Section 324
IPC. It is true that a case in crime No.376/92 came
to be registered at the instance of A6 at 11.30 p.m. under Sections 341, 323
and 324 IPC. It is also true that the copy of F. I.R and other connected
records were not produced before the trial court.
The trial court considered
the injuries that were sustained on the accused at the time of occurrence and
found they were simple
and superficial, and hence, the prosecution was not
called upon to explain the same. Hence, the judgment of the trial court
has
got to be affirmed.

8. This Court paid its full and complete attention on the rival
submissions made and had a close scrutiny of the materials
available.

9. Admittedly, there was enmity that prevailed between the first
accused and the deceased Pannerselvam due to political
rivalry. The gist of
the prosecution case was that on 27.4.1992 at about 8.30 p.m., the accused
Nos.1 to 7, one Ramesh absconding
accused and 10 to 15 persons came with three
cars. A2 was holding gun and all other accused were armed with deadly
weapons.
On seeing the deceased, A1 told his brother A2 that "Pannerselvam is
here, shoot him". Immediately, A2 shot at the deceased
with his gun on his
right leg and all other accused have also attacked him on different parts of
his body. PW2 and Murthy,
who was not examined, since deceased, were also
shown as injured. According to the prosecution, P.Ws.1 to 5 were
eyewitnesses.
But, P.Ws.4 and 5 have turned hostile, and hence, the
prosecution wanted to rely on the evidence of P.Ws.1 to 3.

10. The learned counsel for the appellants brought to the notice of
the court a few circumstances, which casts a doubt
whether P.W.1 was present
at the time of occurrence. The occurrence, admittedly, has taken place in
front of the shop of P.W.6.
But, in his evidence, he has not spoken anything
about the presence of P.W.1. Even the rickshaw puller also has not spoken
anything about the presence of P.W.1. But, P.W.1 has claimed that he took the
deceased and other injured to the hospital. The
medical officer has also not
spoken anything about the availability of P.W.1. Hence, it is very doubtful
whether P.W.1 was present
at the time of occurrence. On the strength of the
complaint given by P.W.1, a case came to be registered in the instant case.
It could be well said that though P.W.1 was not present at the time of
occurrence, he set the law in motion. Barring his
evidence what was available
for the prosecution was the evidence of P.Ws.2 and 3.

11. This court is able to notice two serious infirmities in the
prosecution case, namely, the non explanation of the
injuries found on A6 , A7
and one Ramesh against whom the case was conducted separately by the Court of
Sessions and the suppression
of F.I.R. and the connected records in Crime
No.376/92, which came to be registered at the instance of A6. As could be
seen from the available materials, A6 was examined by P.W.9 Doctor at 10.00
p.m. He informed to the Doctor that he was attacked
by four known persons,
which has been recorded. Ex.P.5 was the wound certificate in respect of A6.
The following injuries were
found on A6:

2) Three cut injuries on the (Lt) Thumb and finger is hanging loosely.
3) Three cut injuries on the (Rt) side Transversely placed
one at the heel,
one at the base of toe, another at the base of little toe.
This Court is able to notice incised wound also.
Apart from that from the
evidence of Investigating Officer, it is clear that injuries were found on A7
and other accused also.
It is a matter of surprise to note that When the
Investigating Officer went to the hospital to effect the arrest on A6 and A7,
he noticed injuries caused on them. But, he did not enquire about the same.
The contention of the learned counsel for the revision
case and the learned
Government Advocate that the injuries were superficial and hence the
prosecution was not called
upon to explain cannot be accepted in view of the
nature of the injuries as could be evident from Ex.P.5 wound certificate.
Insofar as the injuries were concerned, number of questions were put by the
defence to the eyewitnesses, namely, P.Ws.2 and
3. But, they plead no
knowledge about the same. Hence, it is a case where the prosecution has not
explained the injuries
sustained by the accused in the cause of the same
transaction. A case came to be registered on the complaint of A6 in Crime
No.376/92 at 11.30 p.m. on the very day. When a question was raised by this
Court to the prosecution, it is admitted that a case
was registered in Crime
No.376/92 on the complaint of A6 at 11.30 p.m. under Sections 341, 323 and
324. Hence, it cannot be
now stated that the complaint given by A6 was
pertaining to some other transaction. No doubt, the accused were sustained
injuries on the same transaction. If so, a duty is cast upon the prosecution
to produce the said F.I.R and all other connected
records and must also
explain what happened to the F.I.R and whether the investigation was taken up
or not. On the contrary,
when these questions were put to the Investigating
Officer, he has stated that he had no knowledge about the registration of the
case in Crime No.376/92. This Court is of the view that the prosecution has
suppressed all the materials pertaining to Crime No.376/92
which has arisen in
respect of part and parcel of the same transaction. Without the presence of
the same, the trial court cannot
take correct decision in the matter.

12. Taking into consideration that no explanation was tendered by the
prosecution in respect of the injuries found on
A6, A7 and other absconding
accused and the suppression of the materials in respect of Crime No.376/92,
this Court is of the
view that it would not be possible to take a correct
decision in the matter on the testimony of P.Ws.2 and 3, which is not free
from doubt, and hence, this Court is of the view that the judgment of the
trial court finding A1, A3 and A6 guilty has
got to be set aside.
Accordingly, this court is inclined to set aside the judgment of the trial
court in respect of A1,
A3 and A6.

13. In the result, the criminal appeal is allowed setting aside the
judgment of conviction and sentence by the court
below in respect of A1, A3
and A6. The appellants/accused Nos.1,3 and 6 are acquitted of the charges
under Sections 326 and
324 IPC ectively. Bail bonds, if any, executed by the
appellants/accused Nos.1,3 and 6 shall stand cancelled. The Court is unable
to see any merit in the criminal revision case seeking enhancement of
punishment. Accordingly, the criminal revision
case is dismissed.
Consequently, connected Crl.M.P. is closed.